The Criminal Prosecution Against Mark Houck under the Freedom of Access to Clinic Entrances Act (FACE) Should be Dismissed Because the Act may not valid after the Dobbs decision
The details of the FBI arrest of pro-life activist, Mark Houck, for allegedly violating the Freedom of Access to Clinic Entrances (FACE) Act are detailed in Elizabeth Vaughn’s fine article:
There is a serious question whether the FACE Act is valid law following the Supreme Court decision in DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION that held there is no constitutional right to an abortion.
Title 18 USC Section 248, the FACE Act was passed in 1994.
It was sponsored by that champion of women’s rights, Senator Edward Kennedy, a/k/a Teddy the Swimmer, and Chuck Schumer, and signed by the other champion of women’s rights, President Bill Clinton.
The law was passed because in 1993 the Supreme Court ruled that Title 42 USC 1985(3), known as the KKK Act
does not apply to protests at abortion clinics.
Freedom of Access to Clinic Entrances Act of 1994 | The First Amendment Encyclopedia (mtsu.edu)
The purpose and Constitutional authority for the Act is:
“Pursuant to the affirmative power of Congress to enact this legislation under section 8 of article I of the Constitution, as well as under section 5 of the fourteenth amendment to the Constitution, it is the purpose of this Act to protect and promote the public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services.”
The Act states that the authority to pass the Act is based on the 14th amendment, Section 5:
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Presumably, Congress cited the 14th amendment because the 14th amendment incorporates the Bill of Rights to make them applicable to the states, municipalities, and other local governmental units. The 14th amendment substantive due process clause was the basis for the Supreme Court in Planned Parenthood v. Casey decisions to uphold the Roe decision that there was a constitutional right to abortion.
The other basis for the FACE Act is the Commerce Clause, Article 1, Section 8, of the Constitution which lists the enumerated powers of Congress and has the general language of:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Article I, Section 8 – Annenberg Classroom
The enumerated powers of Congress do not include authority for restrictions on protests at abortion clinics. Thus the authority must come from the 14th amendment.
Before Dobbs, federal courts upheld the constitutionality of the FACE Act on challenges based on infringement of the protesters First Amendment rights, and on the authority of the Commerce Clause. The courts went out of their way to say that Congress considered the economic impact of protesters on abortion clinics:
“Given the detailed congressional record, we are satisfied that Congress had a rational basis to conclude that the activities prohibited by the Act disrupted the national market for abortion-related services and decreased the availability of such services. “
It is difficult to believe that the Courts would have upheld the FACE Act if abortion had not been declared a constitutional right by CASEY/ROE.
Each state has criminal laws dealing with trespass, disorderly conduct, assault, and other statutes to deal with situations that warrant action. This is another instance of the federal government exercising power where the states can do what is necessary.
Since Dobbs overruled Casey then the 14th amendment cannot now be the authority for the FACE Act. The FBI may argue that the incident occurred in October 2021, before Dobbs, but the arrest with the numerous agents occurred after Dobbs.
If there is no constitutional authority for the FACE Act following Dobbs, then there should not be federal prosecution under the FACE Act.
The Commonwealth of Pennsylvania could have filed state criminal charges, but the Philadelphia DA declined to file criminal charges. This occurs when the incident is not serious enough to warrant prosecution. The alleged victim filed a private criminal complaint, but the case was dismissed because the alleged victim did not appear at trial.
Given that Pennsylvania declined to prosecute, the alleged victim failed to appear at the hearing on his privately filed criminal complaint against Houck, and the Dobbs decision that undercuts the legal authority for the FACT Act, why the arrest of Houck almost one year after the incident
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I look forward to learning more about the alleged 72 year old victim J.L., who thinks it is permissible to talk to a12 year old boy by referring to his father through homophobic slurs (and will the LGBTQ wrecking crew descend upon him for unsanctioned use of their term?).